Administrative Determination of Eligibility for Veterans' Beneficiary Travel Reimbursement ( 1982 )

Administrative Determination of Eligibility for
Veterans’ Beneficiary IVavel Reimbursement
T he Veterans A dm inistration (VA) has discretion to determ ine on a case-by-case basis w hether VA
beneficiaries should be reim bursed for transportation costs incurred in connection with their
receipt of VA m edical care, and is not required to do so in all cases.
The perm issive statutory term “ may,” used to describe the VA’s adm inistrative authority to reim burse
transportation co sts, should be interpreted in light of its plain m eaning unless the legislative
history reveals that such an interpretation would lead to absurd results, o r consequences obviously
at variance with the policy o f the statute as a w hole. The legislative history of the Veterans’ Benefit
Act o f 1957 and its predecessor statutes is am biguous with respect to Congress’ intent in using the
word "m ay” in the 1957 A ct, and is thus not sufficiently com pelling to contradict the plain
language of the statute.
N otw ithstanding the VA’s consistent interpretation o f the relevant provisions since 1957 to m andate
travel reim bursem ent, legislative ratification of this adm inistrative interpretation in subsequent
am endm ents to the statute will not be found in the absence o f clear and unam biguous congressional
acceptance of the VA’s position.
December 7, 1982
MEMORANDUM FOR THE COUNSEL TO THE DIRECTOR,
OFFICE OF MANAGEMENT AND BUDGET, AND THE
GENERAL COUNSEL, VETERANS ADMINISTRATION
This memorandum responds to Mr. Horowitz’s request for our opinion
whether the Veterans Administration (VA) has discretionary authority to deter­
mine administratively the eligibility of VA beneficiaries to receive reimburse­
ment for certain travel expenses. Under 38 U.S.C. §§ 111, 601, 610, and 612,1
the VA is authorized to reimburse certain transportation costs of eligible veterans
traveling to receive VA covered medical benefits. The Office of Management and
Budget (OMB) believes these sections do not require the VA to make such
payments.2 This conclusion is based on the fact that § 111 uses the permissive
term “may” in describing the administrative authority to reimburse transportation
expenses. The VA, on the other hand, construes these statutes as mandating
payment of covered travel expenses of eligible veterans who are receiving VA
1 All statutory references herein will refer to Title 38 of the U .S. Code unless otherwise specifically noted
2 See Memorandum from Michael J. Horowitz, Counsel to the Director, OMB, to Theodore B. Olson, Assistant
Attorney General (AAG), Office of Legal Counsel (OLC), June U , 1982
725
medical care.3 It argues that Congress intended the word “may” as used in all of
these provisions to be mandatory, and that over the years Congress has never
challenged the VA’s interpretation that such payments are mandatory. The VA
recognizes, however, that it has some discretion in determining the eligibility of
certain veterans for travel expense reimbursement and in establishing the rate and
mode of such reimbursement.
We have carefully studied both of your memoranda on this question. While
there is some confusion over what Congress intended when passing these
sections and amending them over the years, we believe the plain meaning of the
language of these provisions indicates that Congress initially intended to grant
the Administrator of the VA discretion regarding reimbursement of transportation
costs. Because nothing in the legislative history of the relevant statutes and
amendments to them clearly establishes that these statutes should be interpreted
in a manner contrary to the plain meaning of the words employed and, in fact, the
legislative history provides some support, albeit somewhat ambiguous, for the
view that Congress intended these statutes to be discretionary, we conclude that
the Administrator is not required under the relevant statutory provisions to
reimburse the transportation costs of VA beneficiaries traveling to receive cov­
ered care.
We emphasize that our opinion does not suggest that the Administrator’s
current practices regarding payment of transportation should or must be changed.
The Administrator may wish to continue present practices and is clearly author­
ized to do so. We merely conclude that such reimbursement is not mandated by
the relevant statutory provisions.
I. Statutory Language
W hether the Administrator must reimburse the travel expenses of eligible
veterans depends upon the interpretation of four interrelated statutory provi­
sions— §§ 111, 601, 610, and 612.
Section 610 supplies the basic authority for the Administrator of the VA to
provide hospital and domiciliary care to veterans “within the limits of Veterans’
Administration facilities.” According to this section, the Administrator “may”
furnish “hospital care” to veterans suffering from service-connected disabilities,
to veterans who are suffering from non-service connected disabilities and who
are unable to defray the necessary medical expense, and to veterans who meet
certain other selected criteria.4 The Administrator “may” also generally furnish
3 See M emorandum from John P Murphy, General Counsel, VA, to Theodore B. Olson, AAG, OLC, June 16,
1982 (VA Memorandum).
4 The Administrator may also provide hospital care to a veteran “whose discharge or release from the active
military, naval, o r air service was fora disability incurred or aggravated in line of duty”; “who is in receipt of, or but
for the receipt o f retirement pay would be entitled to, disability compensation” ; who is 65 years or older; or who is a
former prisoner o f war. See § 610(a)(2), (3), (4), and (6) In addition, § 610 covers care for a veteran who served on
active duty in Vietnam during the Vietnam W ar era and who the Administrator determines may have been exposed to
dioxin o r a toxic substance found in a herbicide or defoliant used for military purposes, or for a veteran who was
exposed while on active duty to ionized radiation from the detonation of a nuclear device in a test of such device or
during the American occupation o f Japan in 1945-1946, so long as the VA C hief Medical Director does not find that
the disability arises in either of these cases from a cause other than these two types of exposure See §§ 610(a)(5)
and (e).
726
domiciliary care, pursuant to § 610(b), to veterans unable to defray the necessary
expense, to veterans discharged from active service for a disability incurred or
aggravated in the line of duty, or to permanently disabled persons in receipt of
disability compensation who are incapacitated from earning a living and who
have no adequate means of support.
Similarly, § 612 generally provides that the Administrator “may,” “within the
limits of Veterans Administration facilities,” furnish “medical services” to vet­
erans for any service-connected disability.5
The terms “hospital care,” “medical services,” and “domiciliary care” are
defined in § 601 (5), (6), and (7), respectively, to include “travel and incidental
expenses pursuant to the provisions of § 111 of this title.” Section 111, in turn,
provides that the Administrator “may pay the actual necessary expense of travel
(including lodging and subsistence) or in lieu thereof an allowance based upon
mileage traveled, of any person to or from a Veterans’ Administration facility or
other place in connection with vocational rehabilitation, counseling . . ., or for
the purpose of examination, treatment, or care.” Section 111, however, imposes a
separate and independent limitation on the Administrator’s authority to reimburse
the transportation costs of veterans receiving non-service-connected care, as
distinguished from service-connected care. With respect to such non-service-
connected care, transportation expenses “may” only be covered when the Admin­
istrator has determined that a veteran is unable to defray the cost of travel, is
receiving or is eligible to receive a VA pension under § 521, or has an annual
income which does not exceed the maximum annual rate which would be payable
to him under a VA pension. Thus, the Administrator is generally granted the
authority to pay transportation costs of persons traveling to receive medical
services, hospital care, or domiciliary care covered by the VA, but only in the
circumstances specified in § 111 and pursuant to regulations prescribed by the
President.
The VA argues that it is required to pay for covered transportation expenses
because the word “may” in §§ 610 and 612 should be read to be mandatory. In the
VA’s view, §§ 610 and 612 require the Administrator to provide hospital care,
domiciliary care, and medical services to eligible veterans, “within the limits of
Veterans’ Administration facilities.” Because the terms hospital care, domiciliary
care, and medical services are defined in § 601 to include transportation,
transportation is an “integral part” of medical care, according to the VA. Thus,
the argument continues, once a person is determined to be eligible for one of
these benefits, that person is automatically eligible for and must also be afforded
transportation. The VA recognizes that the clause “within the limits of Veterans’
Administration facilities” gives it some discretion to set priorities for access to
VA facilities among classes of veterans when facilities are limited. In its view,
5 Medical services may also be provided to veterans if such services are in preparation to, would obviate the need
for, or are necessary to complete treatment incidental to, hospital care covered under § 610; if the veteran has a
service-connected disability rating of 50 percent or more, if the veteran is a former prisoner of w ; if the veteran was
discharged from active service for a disability incurred or aggravated in the line of duty; or if the veteran meets
certain other selected criteria. See § 612(a), (0, and (g).
in
however, it is required to reimburse covered transportation costs whenever
veterans receive care covered by the VA, unless such reimbursement is specifi­
cally precluded by § III.
OMB, on the other hand, contends that the definitions of the medical benefits
described in § 601 specifically make the transportation component subject to the
provisions of § 111, which states that the Administrator “may” pay for certain
travel expenses. The plain meaning of the word “may,” according to OMB, is that
the Administrator has discretion; OMB emphasizes that this construction is
supported by the fact that subdivision (e) of § 111 uses the word “shall” to require
the Administrator of the VA to conduct specified studies and surveys of travel
costs and to report them to Congress. The VA answers this argument by
contending that § 111 should be read as merely adding discretion as to the
alternative modes of calculating reimbursement mandated under §§ 610 and 612,
and not as providing discretion to refuse to reimburse transportation costs on
some basis.6
In resolving this dispute, we begin by observing that the use of the word “may”
in all of these provisions clearly supports OM B’s conclusion that reimbursement
of transportation costs is permissive. A statute’s terms are normally to be
interpreted in light of the usual or customary meaning of the words themselves.
See, e .g .. Southeastern Community College v. Davis, 442 U.S. 397, 405-^406
(1979). The word “may” ordinarily indicates that one has permission or liberty to
do something, not that one is required or compelled to do something. See
W ebster’s Third N ew International Dictionary, 1396 (1976). Absent some com­
pelling evidence of a contrary intent, the courts have interpreted the word “may”
as used in a statute to be permissive. See, e .g ., Anderson v. Yungkau, 329 U.S.
482 (1947); Farmers & Merchants Bank v. Federal Reserve Bank, 262 U.S. 649,
662-63 (1923) (Brandeis, J.); Burglin v. M orton, 527 F.2d 486, 488 (9th Cir.
1975), cert, denied, 42 U.S. 973 (1976); United States s. Bowden, 182F.2d251,
252 (10th Cir. 1950). This interpretation is buttressed in the case of veterans’
medical benefits by the fact that § 111(e)(1), (3), and (4) provides that the
Administrator “shall” conduct an annual study on travel costs and “shall” submit
a report to Congress on the rate he proposes to set for reimbursement. Similarly,
§ 612(h) and (i) provides that the Administrator “shall” furnish certain medicinal
drugs to eligible beneficiaries and “shall” establish an order of priority for access
to medical services. Finally, in §§ 511-562, Congress used the term “shall” in
describing the Administrator’s obligation to pay veterans’ pensions. This contrast
in the use of terms suggests strongly that when Congress wanted to impose a
mandatory requirement in this title— indeed, in two of the very provisions at
6 Although we believe this description of the VA’s position is accurate, the VA’s interpretation of § 111 over the
years has been somewhat strained, if not inconsistent In an August 23, 1960, opinion attached to the VA
M emorandum , the VA found that § 111 not only furnished independent authonty for reimbursement of certain
transportation expenses that were not covered in §§ 612 or 610 at that time, but also mandated reimbursement of
those expenses. In a June 3 0 ,1 9 7 6 , opinion also attached to the VA M emorandum, however, the VA found that it had
greater discretion in reimbursing transportation independently authonzed under § 111 than transportation author*
ized under § 610, although it did not specify the limits of that discretion Thus, according to the VA, the word “may”
as used in § 111 is mandatory with respect to certain types of transportation, but provides some discretion with
respect to others
728
issue— it knew how to do so. See Anderson v. Yungkau, 329 U.S. at 485 (when
“may” and “shall” used in the same provision, “normal inference is that each is
used in its usual sense”); Farmers & Merchants Bank v. Federal Reserve Bank,
262 U.S. at 662-63.7
In addition, §§ 610 and 612 provide that care “may” only be provided “within
the limits of Veterans’ Administration facilities.” Thus, in contrast to the sections
imposing an unqualified obligation on the Administrator to pay pensions, see,
e.g., §§511, 512, 521 (“Administrator shall pay . . . .”), §§ 610 and 612
expressly state that the Administrator need not deliver care to the extent that the
VA does not have adequate facilities. Put another way, Congress has no legal
obligation under these provisions to appropriate sufficient money to ensure that
facilities exist so that every veteran made eligible under these statutes may obtain
services. In the absence of adequate facilities, moreover, the Administrator is free
to choose between categories of beneficiaries in rationing the use of scarce
facilities. Thus, these provisions clearly do not require that all eligible veterans
receive medical benefits and, on the other hand, give the Administrator wide
discretion in allocating resources. All things being equal, this limitation suggests
that the word “may” was used in its ordinary permissive sense— to grant the
Administrator discretion to balance the provision of the various types of care.
The only federal court which, to our knowledge, has addressed the question of
what Congress intended when it used the language of the provisions under
discussion in this memorandum has found that § 610 does not require the
Administrator to provide domiciliary care to veterans. In Moore v. Johnson, 582
F.2d 1228, 1233 (9th Cir. 1978), the court dismissed an action brought under 28
U.S.C. § 1361 to require the Administrator to place certain veterans’ benefici­
aries in specific domiciliary facilities, reasoning that “the benefits made available
by 38 U.S.C. § 610, being such as the Administrator ‘may furnish’ and ‘within
the limits of Veterans Administration facilities,’ are thus committed to agency
discretion by law.”8
In light of the plain meaning of the language of these provisions, we must act
7 The VA Memorandum places some significance on the fact that § 111(e)(2)(A) makes persons receiving or
eligible to receive a VA pension, or with an income below that provided by a VA pension, automatically eligible for
reimbursement of transportation expenses, even though they may otherwise be able to “defray” the expense of such
travel according to the regulations promulgated by the Administrator. The VA draws the inference from this that
“ [t]his section now directs the Administrator to prescribe regulations to limit payment in some case[s] to assure a real
inability to pay for the necessary travel, while making it clear that the authonty to so limit does not apply with respect
to certain other categories c f individuals." VA Memorandum at 5 (emphasis added) Subsection (e)(2), however,
merely establishes various restrictions on the Administrator’s authority to provide travel reimbursement (“In no
event shall payment be provided under this section . . ."). Subparagraph A, which sets forth the basic restriction that
a person seeking reimbursement must demonstrate an inability to defray the expenses before the Administrator is
authorized lo afford such reimbursement, specifically exempts from this mandatory means test veterans “receiving
benefits for or in connection with a service-connected disability” or who fall into the other categories noted above.
Thus, by operation of the statutory double negative, placing veterans in these exempted categones merely puts them
back in the basic posture of being subject to whatever discretion the Administrator may have under the term “may.”
8 In contrast, the Supreme Court, see Reynolds v. United States, 292 U S. 443, 446 (1934), the lower federal
courts, see UnitedStates v St Paul M ercury Indemnity Co., 238 F 2 d 594, 596 (8th Cir. 1956); United States v.
Alperstein, 183 F. Supp. 548, 550 (S D Fla 1960), a jfd , 291 F.2d 455 (5th Cir. 1961); United States Petrik, 154
F Supp. 598, 599 (D Kan 1956); and the Attorney General, see 37 Op A tt’y Gen. 551, 557 (1934), have
interpreted the word “shall” in predecessor statutes on veterans’ medical benefits to be mandatory The distinction
between the use of the word “may” and “shall” is discussed infra.
729
within certain well-defined constraints. If a legislative purpose [of
a statute] is expressed in “plain and unambiguous language, . . .
th e. . . duty of the courts is to give effect according to its terms.”
Exceptions to clearly delineated statutes will be implied only
where essential to prevent “absurd results” or consequences ob­
viously at variance with the policy of the enactment as a whole.
U nited States v. Rutherford, 442 U.S. 544, 551-52 (1979) (citations omitted)
(quoting U nited States v. Lexington Mill & Elevator Co., 232 U.S. 399, 409
(1914)). Thus, §§ i l l , 610, and 612 should be interpreted as permissive unless
the legislative history reveals that such an interpretation would lead to ‘“ absurd
results’ or consequences obviously at variance with the policy of the enactment as
a whole.” Id.
II. Legislative History
The current statutory scheme was essentially established in the Veterans’
Benefits Act of 1957, Pub. L. No. 85-56, 71 Stat. 83, 110 (1957) (1957 Act).
Although subsequent amendments added new types of covered care and new
categories of eligible veterans, and made certain structural changes discussed
below, this Act first adopted the word “may” in 38 U.S.C. §§ 2510 and 2512
(1952) (Supp. V), which were recodified the next year as §§ 610 and 612. See
Pub. L. No. 85-857, §§610, 612, 72 Stat. 1105, 1141-42 (1958). Unfor­
tunately, the legislative history o f the 1957 Act itself is not helpful in determining
what Congress intended when it adopted this language. Except for certain minor
changes not pertinent to this memorandum, the 1957 Act was passed, according
to the committee reports and repeated floor comments, merely to incorporate,
recodify and simplify existing laws, and not to change the substance of veterans’
benefits.9 There was no specific discussion as to why the word “may” was
adopted or whether medical care or transportation was intended to be mandatory
or permissive. In addition, the 1957 Act had substantively different provisions on
medical benefits than the laws it replaced, which mandated the delivery of certain
types of services and only authorized the delivery of others. Thus, in understand­
ing what Congress intended when it passed the 1957 Act with regard to travel
expense reimbursement, we must review in detail the history of the veterans laws
leading up to 1957 and attempt to assess from this general history what Congress
intended when it passed the 1957 Act.
9 See Letter from Comptroller General to C hairm an, Committee on House Affairs, B - 124054 (Jan 30, 1957),
H .R . Rep. No 279, 85th C ong., 1st Sess. 2 (1957) (“b ill. . . does not adversely affect the basic entitlement of any
veteran o r dependent presently on the compensation or pension rolls, nor does it liberalize, except in very minor
areas, the provisions of law which govern the eligibility of veterans and their dependents for such benefits"); 103
Cong. Rec. 4915 (1957) (remarks of Rep. Teague) (stating that “ [t]here is no intent on the part of the committee to
incorporate changes other than on the basis indicated'* and not indicating any intent to change the substantive right to
medical benefits); 103 Cong. R ec.4916(1957)(rem arksofR ep. Adair) (bill is not “designed particularly to change
the substance o f these laws but merely to put them in better form '’); 103 Cong Rec 8176 (1957) (remarks of Sen.
Byrd) (“bill contains only a few minor substantive changes in the existing law, generally of a minor liberalization
. . .").
730
A. Status of Law Before Passage c f 1957 Act
During the period between 1917— when the first act dealing purely with
veterans’ medical benefits was passed— and 1957— when the various existing
veterans’ benefit laws were incorporated and simplified— Congress passed nu­
merous laws mandating medical benefits for some veterans and authorizing care
for others. Originally, under the 1917 Act, the provision of medical benefits was
clearly mandated for all groups covered by the law at that time. The 1917 Act
provided that medical and hospital services “shall be furnished” to World War I
veterans with service-connected injuries. See Pub. L. No. 65-90, § 302(g)(3),
40 Stat. 398, 406 (1917). In 1922, these mandatory services, which included
transportation, were expanded to include hospital care for neuropsychiatric or
tubercular diseases of veterans of the Spanish American War, the Philippine
Insurrection, and the Boxer Rebellion. Pub. L. No. 76-194, § 4, 42 Stat. 496,
497 (1922).
In 1924, however, Congress passed the World War Veterans’ Act, which
generally continued the mandatory category, but authorized the Veterans’ Bureau
(the predecessor to the VA) to provide hospital care, insofar as “existing Govern­
ment facilities permit,” to veterans of any war, military occupation, or military
expedition since 1897, with preference to be given to those unable to defray the
expense. See Pub. L. No. 86-242, § 202(e)(10), 43 Stat. 607, 620-21 (1924).
According to a subsequent report prepared by the General Counsel’s Office of the
VA reviewing the legal developments during this period:
The passage of the World War Veterans’ Act in 1924 brought
about a complete change of policy with regard to the construction
of additional hospital facilities. A large influx of veterans of all
types into Government institutions taxed the capacity of existing
facilities. It then became necessary to plan a program of con­
struction which would eventually take care of the men and women
needing hospitalization or domiciliary care from a veteran popu­
lation of over 5 million. Notwithstanding that the Congress during
the next 7 years authorized and appropriated the sum of
$68,677,000 for new hospital construction, the demand for beds
from veterans with non-service-connected disabilities exceeded
the number of beds available.
Legislative B ackground o f H ospitalization fo r N on-Service-C onnected D is ­
abilities, prepared by General Counsel’s Office, VA, October 1, 1956, reprinted
in Hearings Before House Committee on Veterans’ Affairs, July 16, 1958,
p. 4022 (VA Legislative Background Study). Because the delivery of care to the
new groups covered by the 1924 Act was discretionary, and was to be provided
only when “existing Government facilities permit,” the decision on the level of
services to be provided was made essentially through the congressional appropri­
ations process, where funding levels were set for construction of new VA
facilities. See VA Legislative Background Study, pp. 4022-24.
731
With the onset of the Depression, Congress passed the so-called Economy
Act, Pub. L. No. 73—2, § 6, 48 Stat. 8, 9 (1933), which repealed prior medical
care acts and made the provision of all medical care by the Administrator
permissive. This basic act, which remained in effect with certain amendments
until 1957, “authorize[d]” the Administrator, “under such limitations as may be
prescribed by the President, and within the limits of existing Veterans’ Admin­
istration facilities, to furnish the men discharged . . . for disabilities incurred in
[the] line of duty and to veterans of any war . . . domiciliary care where they are
suffering with permanent disabilities, tuberculosis or neuropsychiatric ailments
and medical and hospital treatment for diseases or injuries.” Pub. L. No. 73-2,
§ 6, 48 Stat. 8, 9 (1933) as am ended by Pub. L. No. 73-78, 48 Stat. 283,
301-302 (1933). In explaining the reasons for this new grant of discretionary
authority, a subsequent report prepared by the Solicitor of the VA and presented
to Congress reviewed the reasons for the Economy Act’s passage:
It was not until 1930 when the Veterans’ Administration was
created, and all agencies dealing with veterans’ relief consoli­
dated therein that the glaring discrepancies and injustices existing
in these laws became apparent. Following this, the Congress,
recognizing the need for remedial action, appointed a joint com­
mittee of the Senate and the House to study the question. This
committee went deeply into the question of veterans’ relief, and
was in the process of formulating a report, but before a final report
was made the President presented his program of economy with
reference to veterans’ benefits which was enacted into law.
* * * * *
It was apparent that in order to insure elimination of inequalities
and injustices revealed by the exhaustive studies and reports the
program should call for legislation expressing the broad princi­
ples governing the relief to veterans and the limits within which
benefits could be administered, leaving the details to the Presi­
dent. This program insured immediate action by the Congress and
as subsequently revealed by veterans’ regulations the program
within the limits prescribed by Congress has been effectuated in
such manner that the desired results have been realized within the
minimum length of time and with the establishment of an accept­
able system of administration.
That the method suggested by the President was the only method
which could be expected to attain results must be conceded by all
who are familiar with the subject. While the Congress had recog­
nized the evils of the existing situation it became early apparent
during the deliberations of the joint committee that there was no
unanimity of opinion as to what should be done. One member or
732
group of members believed that this or that should be done, but
the other should not be done. Other members believed that other
different benefits were the ones which should be changed. It was
only by placing the authority in the President to make corrections
relying on his fairness cfm ind and courage to tackle the problem
and solve it that definite accomplishment could be realized.
Comparative Study c f Veterans' Legislation, prepared by Solicitor, VA, reprinted
in 78 Cong. Rec. 2550, 2554 (1934) (emphasis added).
The President promulgated several veterans’ regulations under the Economy
Act, which, under the terms of the Economy Act, Pub. L. No. 73-2, § 19, 48
Stat. 8, 12(1933), could not be amended by the President after March 20, 1935,
two years after the Economy Act’s enactment.10These regulations authorized the
Administrator to establish a complicated priority system for hospital and
domiciliary care with service-connected care generally having a higher priority
than non-service-connected care. See VA Regulation 6(a), reprinted in notes to
38 U.S.C. § 739 (1946). The presidential regulations also stated that the Admin­
istrator “may” provide certain medical services, although no system of priority
was established for these services. See VA Regulation 7(a), reprinted in notes to
38 U.S.C. § 739 (1946). Finally, the regulations provided that the Administrator
“may” “in his discretion” reimburse transportation expenses of those benefici­
aries traveling to receive VA covered care. See Executive Order No. 6094,
section 111 (March 31, 1933); Executive Order No. 6232, section III (July 28,
1933); Executive Order No. 6566, paragraph 2 (Jan. 19, 1934).
Soon after the passage of the Economy Act, Congress became disturbed over
the VA’s failure to use all available beds in VA hospitals, see 78 Cong. Rec.
3288-89 (1934) (remarks of Sen. Steiwer), and added a new clause to § 706
specifically requiring the Administrator to pay for hospital and domiciliary care
(including transportation) for veterans of any war who were unable to defray the
expense of their care or transportation. This provision stated in full:
That any veteran of any war who was not dishonorably dis­
charged, suffering from disability, disease, or defect, who is in
need of hospitalization or domiciliary care, and is unable to
defray the necessary expenses therefor (including transportation
to and from the Veterans’ Administration facility), shall be fur­
nished necessary hospitalization or domiciliary care (including
transportation) in any Veterans’ Administration facility, within
the limitations existing in such facilities, irrespective of whether
the disability, disease, or defect was due to service. The statement
under oath of the applicant on such form as may be prescribed by
the Administrator of Veterans’ Affairs shall be accepted as suffi­
cient evidence of inability to defray.necessary expenses.
10 We have not examined the constitutional implications of such a process.
733
Pub. L. No. 73-141, § 29, 48 Stat. 509, 525 (1934) (emphasis added). Unlike
the Economy Act which only gave the Administrator “permissive authority” to
provide care, this amendment, as its author noted, was “mandatory in its
requirement” with respect to war veterans when available hospital and domicili­
ary facilities existed. 78 Cong. Rec. 3288-89 (1934) (remarks of Sen. Steiwer)."
The courts which interpreted this section uniformly found that, by using the word
“shall,” it required the Administrator to provide hospital care for needy war
veterans under the specified circumstances. See United States v. St. Paul Mercury
Indemnity C o ., 238 F.2d 594, 596 (8th Cir. 1956); United States v. Alperstein,
183 F. Supp. 548, 550 (S.D. Fla. 1960), a jf d , 291 F.2d 455 (5th Cir. 1961);
United States v. Petrik, 154 F. Supp. 598, 599 (D. Kan. 1956). The Attorney
General reached the same conclusion in an opinion for the President in 1934. See
37 Op. Att’y Gen. 551, 557 (1934). Apparently in response to the 1934 amend­
ment, the President amended the presidential regulation on veterans’ benefits to
provide that transportation “will” be provided for persons traveling to and from a
VA facility for hospital or domiciliary care if they were unable to defray the
necessary expense. See Executive Order No. 6775, paragraph 2 (June 30,1934).
Despite its mandatory language, however, the 1934 amendment does not
appear to have required the Administrator to change his system of priority for
access to VA care. Under that system, care for service-connected disabilities was
given priority over non-service-connected care, even though veterans with
service-connected disabilities might be able to defray the cost of their care, and
veterans with non-service-connected medical problems might not. The author of
the amendment stated that the purpose of the amendment was to ensure that
excess beds in VA hospitals did not remain vacant while indigent veterans could
not obtain medical care. He expressed no intent to end the system of priority to
medical care that had generally given veterans with service-connected injuries
first calling on VA medical care since 1917. See note 11, supra. The Executive
Branch apparently adopted this interpretation of the amendment, for the Presi­
dent retained the system of priority to care established under the presidential
regulations, see VA Regulation 6(a), reprinted in notes to 38 U.S.C. § 739
(1946), and the Attorney General did not find the system to be inconsistent with
the requirements of the amendment. See 37 Op. Att’y Gen. 551 (1934). Indeed,
congressional committees overseeing the operations of the VA during this period
explicitly approved of the system of priority established by the President. See VA
11 The Senator also noted:
It occurs to us that there is no objection at all to making mandatory the furnishing of hospital
treatment within the limitations of existing facilities when the United States has the facilities and the
personnel to furnish the service and when there are indigent sick veterans unable to care for
themselves, who, if they are not cared for through the agencies of the United States Government,
must be cared for by charity in private hospitals or in Stale and other local institutions.
We hope that the Senate will take favorable action so as to make mandatory the use of these vacant
beds. There are now some 7,000 vacant beds in these facilities Prior to the liberalization of Veterans’
Administration policy and to the use o f the facilities for the C .C .C . and other Federal agencies, there
were nearly 13,000 vacant beds, made vacant by the drastic restrictions under the Economy Act. The
object of this proposal is to bring about the utilization in behalf of sick and indigent soldiers of these
available unused facilities.
78 Cong. Rec. 3289 (1934)
734
Legislative Background Study at 4029-31. Thus, the 1934 amendment does not
appear to have limited the ability of the Administrator to give those needing
service-connected care first access to VA facilities.
The final statute passed prior to the adoption of the 1957 Act was a predecessor
provision of § 111, and was principally intended to permit the Administrator to
substitute a mileage allowance for reimbursement of actual costs. The Comp­
troller General found in a 1938 opinion solicited by the VA that the VA did not
have the authority to substitute a mileage allowance for repayment of actual costs
for beneficiary travel. See Comp. Gen. Op. A-98336 (Oct. 11, 1938). The
Administrator sought12 and obtained passage of this provision to give him that
authority. See 38 U.S.C. § 76 (1946).13
Thus, in 1957, the statutory framework can be summarized as follows: The
Administrator was authorized to provide hospital care, domiciliary care, and
medical services for any veteran. When extra beds were available in VA hospitals
or domiciliary facilities, the Administrator was required, after care had been
provided for service-connected disabilities, to use the remaining facilities to
provide care for war veterans unable to defray the necessary expenses. Finally,
when the Administrator did provide hospital or domiciliary care, he was required
to reimburse the transportation expenses of those unable themselves to defray
such expenses.
B. 1957 Act
With the passage of the 1957 Act the veterans’ provisions in Title 38 were
recodified and §§ 76 and 706 were replaced with new §§ 2510, 2512, and 2121
adopting the permissive language now used in §§ 610, 612, and 111, respec­
tively. See Pub. L. No. 85-56, §§ 510,512,2101,71 Stat. 83,111,112,154-55
(1957). Although the legislative history of the Act clearly demonstrates, as we
noted above, that Congress did not intend to make any substantive changes in the
provision of veterans’ benefits, except for several explicit changes not relevant
here,14the recodification eliminated the word “shall,” but retained the permissive
tone of the original portion of § 706. The new provisions— §§ 2510, 2512,
2121— stated that the Administrator “may” furnish hospital care, domiciliary
care, medical services, and transportation payments to the same groups of
veterans to which he had previously been required to provide care and transporta­
tion under § 706. Thus, Congress used the term “may” in the new statute to cover
the care of groups to which the Administrator clearly had previously been
required to provide care, as well as to the groups to which he clearly had not been
12 See S. Rep No. 920, 76th Cong., 1st Sess. 2 (1939) (quoting VA Administrator's statement that bill "has been
prepared with a view o f securing authorization to provide by regulation for an allowance on a mileage basis in lieu of
expense of such travel including necessary expense for mea[l]s and lodging”) See also H R Rep No 1579,76th
Cong , 3d Sess. 1-3 (1940).
13 Pub L. No 76-432, 54 Stat. 49 (1940). The Act also provided that payment of mileage allowance could be
made before completion of travel and that "when any such person requires an attendant other than an employee of the
Veterans’ Administration for the performance of such travel, such attendant may be allowed expenses of travel upon a
similar basis ” Id at 50.
14 See note 9, supra
735
required to provide care. The basic language of § 76, which stated that the
Administrator “may” pay the actualjcosts or per mile costs of veterans traveling
for examination or care, was also incorporated in a new § 2121.
Congress’ intent in using the word “may” in the 1957 Act is certainly not self-
evident. Each alternative interpretation of this language finds some element of the
legislative history or statutory language which arguably does not support it. In
light of this ambiguity, however, the legislative history, in our view, is not
sufficiently compelling to contradict the plain language of the statute, and,
indeed, can be read generally to support a permissive interpretation.
First, the legislative history o f all of these provisions reflects one overwhelm­
ing fact— the Administrator must have wide discretion to set priorities and
balance resources in the provision of medical benefits for veterans. Since the
passage of the World War Veterans Act in 1924, veterans’ facilities and resources
have never matched the needs o f all of those who were eligible for care, thereby
necessitating that the delivery o f care would be largely discretionary.15This need
for administrative discretion is also reflected in the ubiquitous provision that care
can only be supplied “within the limits of Veterans’ Administration facilities.”
Although Congress did limit this administrative discretion somewhat by passing
the 1934 amendment to the Economy Act, the amendment appears to have been
intended merely to ensure that excess VA beds were used, and not to limit the
Administrator’s overall authority to balance resources and priorities for care. In
light of this history of general administrative discretion, it is reasonable to
assume that, by using the word “ may” in the 1957 Act, Congress intended to
permit the Administrator to engage in a general balancing of resources with
respect to medical and transportation expenses.
SecontLCongress’ announced intention in passing the 1957 Act— not to alter
the substantive provisions on veterans’ benefits—cannot be taken at face value.
Despite the general statement o f purpose, the text of the 1957 Act clearly reveals
that Congress not only removed the mandatory language in § 706, but also
terminated the eligibility for certain categories of veterans. For example, § 706
had given the Administrator the authority to cover hospital and domiciliary care
for non-service-connected injuries, even though the veterans had the money to
defray the expense. See also VA Regulation 6(a)(1)(f), reprinted in notes to 38
U .S.C . § 739 (1946). Section 2510 (renumbered to current § 610 by the 1957
Act), however, limited coverage to those who were receiving service-connected
care or who were unable to defray the medical expense.
Third, Congress must be charged with knowledge that, by removing the
mandatory language in § 706 and adopting the permissive word “may” in
§§ 2510 and 2512, these provisions were susceptible to the natural interpretation
of the term to give the Administrator permissive authority. Before the 1957
codification, Congress had expressly distinguished in § 706 between the man­
datory use of the word “shall,” as adopted in the 1934 amendment, and the
15 A sim ilar system of priority to medical services was statutorily mandated in 1976 amendments lo § 612. See
Pub. L. No. 94-581, § 103(a)(8), 90 Stat. 28 4 2 . 2845 (1976)
736
permissive language in the Economy Act— a distinction which was recognized
by the courts and the Attorney General. The President had also amended the
presidential veterans’ regulations on transportation from “may” to “will” appar­
ently in response to this change. Id. Thus, when Congress chose to delete the
word “shall” in 1957 and employ the permissive term “may,” Congress must be
presumed to have understood the significance of its choice of terms. See 2A, C.
Sands, Sutherland Statutory Construction § 51.02 (“if words used in a prior
statute to express a certain meaning are omitted, it will be presumed that a change
of meaning was intended”) (footnote omitted).
Finally, to interpret these provisions to require the Administrator to reimburse
the covered transportation costs of eligible beneficiaries would lead to an unlikely
result. If the Administrator lacks the facilities to provide all the care specified in
the statute, a situation which the legislative history reveals to be the usual
circumstance, he has explicit authority, by virtue of the clause “within the limits
of Veterans’ Administration facilities,” to allocate resources between classes of
veterans. An interpretation that the Administrator is required to make transporta­
tion payments to beneficiaries traveling to receive medical benefits, however,
would protect transportation services at the expense of medical services, hospital
care, and domiciliary care. In a situation where the Administrator lacks sufficient
funds to cover all medical and transportation services, he would be required to
reduce hospital care, domiciliary care, and medical services to a level that would
ensure that persons receiving medical benefits received all covered transportation
reimbursement. Thus, conceivably, this interpretation would require the Admin­
istrator to deny medical benefits to some eligible veterans in order to provide
medical benefits and transportation benefits to a smaller number of eligible
veterans.
Thus, while the issue is not free from doubt, the legislative history surrounding
Congress’ adoption of the permissive language now contained in §§ 610 and 612
generally supports the conclusion that Congress did not intend to require the
Administrator to reimburse all transportation costs of VA beneficiaries traveling
to receive covered care. Certainly, nothing in the legislative history suggests that
an interpretation of these provisions as discretionary leads to “ ‘absurd results’ or
consequences obviously at variance with the policy of the enactment as a whole.”
United States v. Rutherford, 442 U.S. 544, 552 (1979) (citations omitted).
III. Legislative Ratification
Having concluded that the legislative history prior to 1957 does not rebut the
plain meaning of the language of these provisions, we still must explore the VA’s
argument that the VA has consistently interpreted the relevant provisions since
1957 to mandate travel reimbursement and that Congress has been fully aware of
this view. Although not stated explicitly, the VA is apparently suggesting that
Congress has ratified the VA’s interpretation.
737
A . Requirements fo r Finding a Legislative Ratification
Legislative ratification has generally served as a device for resolving ambigu­
ities in statutory language. The principle is an outgrowth of the related concept
that the well-reasoned interpretation of a statute by the agency charged with its
enforcement is entitled to great deference. See, e.g ., Red Lion Broadcasting Co.
v. Federal Communications Commission, 395 U.S. 367, 381 (1969); Udall v.
Tollman, 380 U.S. 1, 16(1965). When the agency’s interpretation of a statute has
been publicly conveyed to members and committees of Congress, see, e.g., Haig
v. Agee, 453 U.S. 280, 299 (1981); Securities and Exchange Commission v.
Sloan, 436 U.S. 103, 121 (1978);Z u b e r\. Allen, 396 U.S. 168, 193-94(1969),
and Congress has failed to challenge the agency’s position in circumstances
suggesting adoption of it, see, e .g ., H a ig \. Agee, 453 U.S. at 300-301; Red Lion
Broadcasting Co. v. Federal Communications Commission, 395U.S. at 381-82;
Zem el v. Rusk, 381 U .S. 1, 11-12 (1965), the courts have “held [the legislative
acquiescence] to constitute persuasive evidence that that interpretation is the one
intended by Congress.” Zemel v. Rusk, 381 U.S. at 11 (footnote omitted).
In light of the foregoing principles, those attempting to establish a con­
gressional ratification of the administrative construction of the veterans’ benefit
provisions with respect to beneficiary travel carry a heavy burden. First, the
language of the relevant provisions is not facially ambiguous. The Supreme
Court has ordinarily found a legislative ratification of an administrative inter­
pretation only where the agency has construed an ambiguous statute. See Se­
curities and Exchange Commission v. Sloan, 436 U.S. at 121. Generally speak­
ing, “administrative practice does not avail to overcome a statute so plain in its
commands as to leave nothing for construction.” Norwegian Nitrogen Products
C o. v. United States, 288 U.S. 294, 315 (1933) (Cardozo, J.). See F.M.C. v.
Seatrain Lines, 411 U.S. 726, 745 (1973); United States v. Southern Ute
Indians, 402 U.S. 159, 173 n.8 (1971); Estate c f Sanford v. Commissioner c f
Internal Revenue, 308 U.S. 39, 52 (1939). Although we would not exclude the
possibility that Congress could ratify an interpretation contrary to the ordinary
meaning of a statute, cf. Saxbe v. Bustos, 419U .S .65,74(1974); United States v.
M idw est O il C o ., 236 U.S. 459 (1915), we believe the burden upon those seeking
to demonstrate Congress’ ratification in such a circumstance is demonstrably
greater.
Second, the Administrator’s longstanding practice of reimbursing such costs is
consistent with either interpretation of the statute, namely, that he is required to
reimburse transportation costs o r that he has authority to terminate such pay­
ments, but has simply chosen not to exercise his discretion to do so. Thus, this
situation is distinguishable from the facts of most ratification cases where the
actions of the agency are inconsistent with the alternative construction and thus
can be said to put Congress on notice that it must challenge the agency’s view and
amend the statute if it disagrees with the agency’s interpretation. See, e.g ., Red
Lion Broadcasting Co. v. Federal Communciations Commission, 395 U.S. at
377-379; Zem el v. Rusk, 381 U .S. at 10-11; Kent v. Dulles, 357 U.S. 116,
738
127-128 (1958). B u tc f Haig v. Agee, 453 U.S. at 302-303. Congress’ failure to
challenge the administrative construction in the present situation, therefore,
might not evidence an acceptance of the Administrator’s legal position, but
merely of the policy decision to reimburse transportation costs.
Finally, the decisions of the VA which Congress has supposedly ratified do not
provide a detailed, persuasive legal analysis of the relevant statutes. The general
doctrine deferring to the interpretation of a statute by an administrative agency
has far less application where the decisions of the agency lack “specific attention
to the statutory authorization,” or evidence a lack of “thoroughness . . . in its
consideration” or “validity of its reasoning.” Adamo Wrecking Co. v. United
States, 434 U .S . 275, 287 n . 5 (1978). See Securities and Exchange Commission
v. Sloan, 436 U.S. at 117-18. With respect to the reimbursement of travel
expenses, the VA originally found in a 1960 opinion that it was required to cover
costs for certain veterans because the word “may” in § 111 should be interpreted
as mandatory. See Opinion of General Counsel, VA, Aug. 23, 1960. This
conclusion was based not on an analysis of the legislative history of this
provision, but rather on the fact that the VA itself had previously interpreted one
of its own regulations using the word “may” to be mandatory. Id. at 2. The
General Counsel also relied in the 1960 opinion on the fact that Congress had, in
extending medical services to such veterans in a 1960 amendment, included a
cost estimate of transportation for those obtaining medical services. The opinion
apparently reasons, in a logical non sequitur, that Congress thereby intended to
require transportation costs be covered. Based on the analysis of this 1960
decision, the VA has held in later opinions that transportation costs must be
reimbursed. See Opinion of General Counsel, VA, June 30, 1976; Opinion of
General Counsel, VA, Dec. 12, 1980. This line of decisions hardly constitutes,
in our view, the type of attention to statutory authorization and exercise of
administrative expertise which normally has provided the basis for judicial
deference to an agency’s interpretation and a finding of congressional ratification
of that construction. While we do not exclude the possibility that Congress could
ratify an administrative interpretation under such circumstances, we believe, in
light of the clarity of the statute and the lack of clarity in the VA decisions, that, to
constitute ratification of such a construction, Congress’ acceptance of the admin­
istrative position must, at a minimum, be clear and unambiguous.
B. Congressional Response to VA’s Statutory Construction
Although all of these provisions have been amended numerous times during
the period after 1957, on only three occasions, in 1976, 1979, and 1980, when
amendments were made to § 111, has the authority of the Administrator to cut
transportation payments arguably been at issue. Bearing in mind the heavy
burden upon those claiming that Congress has ratified the administrative inter­
pretation in this case, we do not believe that the history of any of these amend­
ments reflects sufficient evidence of a congressional adoption of the VA’s
construction.
739
(i) 1976 Amendment. The first amendment, which was passed in 1976, does
not raise a serious question of legislative ratification, and thus we deal with it only
briefly here. The 1976 amendment made three changes with respect to benefici­
ary travel reimbursement. First, it amended § 601 to incorporate, for the first
time, the requirements of § 111 in the definitions of hospital care, domiciliary
care, and medical services. See Pub. L. No. 94-581, §§ 102, 202(b), 90 Stat. at
2843—44, 2855. Previously, the definition of hospital and domiciliary care in
§ 601 had merely stated that such care included specified transportation costs,
and the definition of medical services had not included any specific reference to
transportation reimbursement. See 38 U.S.C. § 601 (1970). Second, the 1976
Act amended § 111 to permit the Administrator to require the beneficiary to
submit an annual declaration and certification of his inability to defray travel
expenses in order to ensure that reimbursement for travel costs was not paid to
ineligible veterans. See Pub. L. No. 94-581, § 101,90 Stat. at 2842. Finally, the
1976 Act added the provision that the Administrator “shall” conduct an annual
study of the costs of travel and “shall” set the rates of reimbursement based on this
study. See id. at 2 8 4 2 ^ 3 .
Neither the language nor the legislative history of this Act, which was
generally passed in order to reduce the cost of beneficiary travel, see S. Rep. No.
1206, 94th Cong., 2d Sess. 56-57, 71, 76-77 (1976), evidence any belief by
Members of Congress that the Administrator did not have discretion in reimburs­
ing the travel costs of eligible beneficiaries. To the contrary, although Congress
did not specifically consider whether the Administrator could eliminate travel
reimbursement, the fact that it chose to use the word “shall” rather than “may” in
amending § 111 suggests that it understood “may” was used in its permissive
sense elsewhere in § 111. Moreover, as the floor comments on these amendments
emphasize, these changes were not intended to eliminate the “Administrator’s
present authority to change the rate” of reimbursement for transportation. 121
Cong. Rec. 40629 (1975) (remarks of Rep. O ’Brien). See also id. (remarks of
Rep. Teague) (bill “does not take away the Administrator’s right or responsibility
to change the rate”). Thus, the adoption of this amendment suggests, if anything,
that the Administrator has broad discretion in allocating funds to beneficiary
travel.
(ii) 1980 Amendment. The 1980 amendment also does not raise a serious
question of legislative ratification. This amendment was passed in response to the
Carter Administration’s initial attempt to eliminate reimbursement for benefici­
ary travel under the authority of the Appropriations Act of 1980, Pub. L. No.
96-86, § 112, 93 Stat. 656,661 (1979). The Appropriations Act p u tacap o n the
total amount of funds which could be obligated for travel and transportation “for
officers and employees of the executive branch. . . .” OMB initially took the
position that the Act limited the funds which could be obligated for VA benefici­
ary travel, and thus moved to limit beneficiary travel payments. Ultimately, the
Administration agreed not to limit expenditures for beneficiary travel as a result of
Pub. L. No. 96-86. See S. Doc. No. 49, 96th Cong., 2d Sess. 8-9 (1980). In
response to the threatened cutback, however, Congress passed an Act which
740
stated that henceforth “[n]o provision . . . which imposes any restriction or
limitation on the availability of funds for the travel and transportation of officers
and employees of the executive branch” shall be applicable to veterans obtaining
travel expenses under § 111 “unless such provision is expressly made applicable
to the travel of such veterans. . . .” Pub. L. No. 96-330, § 406, 94 Stat. 1030,
1052 (1980), reprinted in notes to § 111.
Like the 1976 Amendment, the passage of this provision does not clearly
constitute an adoption of the Administrator’s position on beneficiary travel by
Congress. The only question at issue was the Administrator’s obligation under the
1980 Appropriations Act or similar acts to reduce the costs of beneficiary travel
along with government employee travel. The amendment did not deal with the
question of the Administrator’s authority to reduce travel costs under §111.
We recognize and have carefully considered that during the hearings over the
proposed cutbacks, two members of the House Committee on Veterans Affairs
and the representatives of the VA stated, without analysis, that the Administrator
was required to reimburse the covered transportation costs of VA beneficiaries in
the absence of the budgetary cap. See Letter of Apr. 1, 1980 from Rep. Ray
Roberts to James McIntyre, Jr., Director, OMB, reprinted in Hearings on VA
Beneficiary Travel Before the House Subcommittee on Special Investigations c f
the Committee on Veterans Affairs, 96th Cong., 2d Sess. 29 (May 21, 1980)
(Travel Hearings); Travel Hearings at 1 (remarks of Rep. Mottl); id. at 27
(remarks of Dr. Custis); id. at 32 (remarks of Mr. Coy). This legal issue, however,
was not the focus of the hearing, nor of the subsequent amendment to § 111
dealing with general budget caps on travel expenses. There is no indication,
moreover, that Congress as a whole ever considered this issue in passing the
amendment. We cannot find a congressional adoption of the Administrator’s
position “based only upon a few isolated statements in the thousands of pages of
legislative documents,” especially where that interpretation is “at odds with the
language of the section in question and the pattern of the statute as a whole.”
Securities and Exchange Commission v. Sloan, 436 U.S. at 121.
(iii) 1979 Amendment. The 1979 amendment to § 111, which gave the
Administrator broad authority to determine by regulation whether recipients were
able to defray the cost of travel, see P’ib. L. No. 96-151, 201(a), 93 Stat. 1092,
1093 (1979), raises a more serious question of legislative ratification and thus
must be considered in greater detail than the other two changes. In 1979 the
Administrator originally proposed that § 111 be amended to abolish reimburse­
ment of transportation for non-service-connected care, except where a special
mode of transportation was needed for medical reasons. See S. Rep. No. 177,
96th Cong., IstSess. 15-16, 52-53 (1979). The Administrator noted in a letter to
the Senate that “this proposal will result in significant cost savings to the
Government so that limited VA resources may be more effectively utilized
. . . .” Letter to Walter Mondale, President, U.S. Senate, from Max Cleland,
Administrator, VA, reprinted in S. Rep. No. 177, 96th Cong., 1st Sess. 53
(1979). In hearings before the committee, officials of the VA appeared to
concede, albeit without any legal analysis, that the VA could not bring about
741
savings in the travel program without the enactment of its proposal. See Hearings
on VA H ealth Resources and Program Extensions Before the Senate Committee
on Veterans Affairs, 96th Cong., 1st Sess. 64 (1979) (remarks of Dr. Custis,
Deputy Chief Medical Director, VA). Cf. id. at 70 (enactment of restriction on
beneficiary travel would save $39 million dollars).
The position adopted by the Senate Veterans Affairs Committee could be read
to suggest that it agreed with this view. The Committee initially opposed these
and other cutbacks because “the nearly $ 100 mil lion that the VA estimated would
be saved if the cost-savings provisions were enacted, would be subtracted from
the already strained VA budget.” S. Rep. No. 177, 96th Cong., 1st Sess. 16
(1979) (emphasis added). Subsequently, the Senate Committee agreed to report a
modified version of the Administration proposal, which reduced the reimburse­
ment of transportation costs for non-service-connected care, but only if the
Administration also agreed to use the extra funds reaped from the cost savings for
the hiring of additional medical personnel at VA hospitals. See S. Rep. No. 177,
96th Cong., 1st Sess. 7 (1979). See also 125 Cong. Rec. 15163, 15172, 15175
(1979) (remarks of Sen. Cranston); 125 Cong. Rec. 15167, 15173 (1979)
(remarks of Sen. Humphrey). The agreement was necessary, as one Senator
noted, because the VA was “prohibited from enforcing the cost savings unless it
also hires the extra medical personnel” to which it had agreed. 125 Cong. Rec.
15177-78 (1979) (remarks of Sen. Morgan). See also 125 Cong. Rec. 34985
(1979) (remarks of Sen. Cranston). The Administrator assented to this bargain
because “[ejnactment of these provisions [would] free up resources to make
possible additional VA medical facility staffing . . . .” Letter of June 15, 1979,
to Sen. Alan Cranston from Max Cleland, Administrator, VA, reprinted in 125
Cong. Rec. 15163 (1979) (emphasis added). By making such an agreement,
therefore, it might be argued that the Senate committee and the Administrator
recognized that the Administrator did not have authority to reap these cost savings
by eliminating reimbursement for beneficiary travel without this amendment.
Ultimately the Administrator acquiesced and adopted the personnel increases
before passage of the amendments, see 125 Cong. Rec. 34985 (1979) (remarks of
Sen. Cranston), and the Senate and House compromise limited even further the
cutbacks on beneficiary travel which had been adopted by the Senate. See id.
(rem arks of Sen. Cranston); id . at 34989-90 (Senate-House Report on
Compromise).
Although the significance of the 1979 legislative history is not free from doubt,
we do not believe that this one brief period of bargaining between the Admin­
istrator and the Senate committee constitutes a ratification by Congress of the
legal position of the VA with respect to the reimbursement of travel costs. We
cannot find in these circumstances sufficient evidence of congressional adoption
of the VA’s construction of the statutory provisions here in issue. First, there is no
indication the Senate as a whole or the House agreed with the position of the
Senate committee. Second, the circumstances of the bargaining process suggest
that members of the committee may have been motivated more by a desire to
secure concessions from the Administrator on staffing levels under circumstances
742
in which they otherwise agreed with the policy of limited travel expenses, than
any underlying agreement with his legal position. In this regard, we note that
there was no discussion or consideration of the legal basis of the Administrator’s
supposed obligation to provide transportation payments in the committee report
or floor comments. Finally, and most importantly, we are aware of no other
occasion where a congressional report has specifically addressed the authority of
the Administrator to elim inate reimbursement for beneficiary travel under
§§ 111,610, and 612. In the absence of any sustained and general treatment of
this issue or a more specific focus on it, we do not believe that this single period of
bargaining between the Administrator and the Senate committee can be said to
rebut the plain words of the statute.
Accordingly, in light of the plain language of the statute and the lack of
persuasiveness of the Administrator’s decisions, we conclude that none of these
amendments constitutes a congressional ratification of the VA’s legal position.
IV. Conclusion
In summary, we believe the plain language of §§ 111, 601, 610, and 612
indicates that the Administrator is not required to reimburse the transportation
costs of eligible veterans’ beneficiaries traveling to obtain medical benefits. We
are reluctant to construe a term which provides discretion to an agency as creating
a mandatory requirement unless there is reasonably strong and persuasive
evidence that Congress intended to limit both the agency’s discretion and Con­
gress’ discretion in the appropriations process. The legislative history of these
provisions, however, although somewhat confused, generally supports a per­
missive interpretation. The history surrounding Congress’ recent amendments to
§111, moreover, does not evidence any general and clear congressional accept­
ance of the VA’s position that such payments are mandatory so as to constitute a
congressional ratification of this view. Thus, we agree with OMB that the VA has
discretionary authority to determine in what cases it will reimburse the covered
transportation expenses of veterans who are eligible to receive such payments
under §§ 111, 601, 610, and 612. We emphasize that our conclusion does not
require the Administrator of the VA to make any changes in pending policies or
practices. We find only that the language of the relevant statutes does not prevent
him from doing it.
T heodore B. O lson
Assistant Attorney General
Office c f Legal Counsel
743